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PRODUCTS:
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1. Price and Payment. Purchaser agrees to pay the total purchase stated on Invoice Face. Unless otherwise stated on the Invoice Face, the terms of payment are net cash prior to shipment. If credit terms are agreed to in advance by Seller, subject to credit approval by Seller, a service charge of the lesser of one and one-half percent (1-1/2%) per month or the highest lawful rate will be assessed on accounts more than thirty (30) days overdue. In the event the Purchaser fails to make any payment when it is due, the Purchaser shall pay all costs of collection, including seller's attorneys' fees.
2. Taxes. Unless otherwise stated, prices do not include any federal, state and local sales, use, excise, ad valorem and other taxes charges and assessments imposed on or based upon the sale, shipment, transportation, delivery, installation or use of the merchandise described on the Invoice Face (the "Merchandise"), all of which shall be paid by Purchaser in addition to the purchase price.
3. Title, Shipment, Identification, Risk of Loss, and Insurance. Title to the Merchandise shall remain, as a security interest only, in Seller until the full purchase price is paid. Failure to pay the purchase price when due shall give Seller the right, without liability, to repossess the Merchandise with or without notice and to avail itself of any other legal remedies. Unless otherwise agreed to by Seller, all shipments of the Merchandise shall be F.O.B. shipping point. The method and route of shipment shall be at Seller's discretion, unless Purchaser supplies explicit written instructions which are agreed to in writing by Seller. If the method or route of shipment is specified by Purchaser, Seller shall have the option of requiring Purchaser to pay the delivery charges. In such case, delivery charges will be prepaid by Seller and added to the purchase price. Risk of loss shall pass to Purchaser when the Merchandise is placed in the hands of the carrier or, if no carrier is used, in the hands of the Purchaser. Until final payment is made, Purchaser shall insure the Merchandise for which it has risk of loss against damage, destruction or loss of theft, fire or other casualty for full replacement value. Purchaser shall name Seller as an additional insured and provide sufficient evidence to Seller of such required insurance.
4. Delivery, Delay. Delivery dates stated, if any, are estimates and are not a guarantee of delivery on a particular date. Any Merchandise unavailable at the time of order will be shipped as soon as reasonably possible. Seller shall not be liable to Purchaser for any failure or delay in performance or for any damages suffered by Purchaser by reason of such failure or delay arising from any cause not within Seller's reasonable control including but not limited to: (a) accidents to or breakdowns or mechanical failures of plant, machinery or equipment; (b) strikes, embargoes, lockouts or other disputes or unrest; (c) fires, explosions, floods, natural disasters or acts of God; (d) shortages of labor, fuel, power, materials or supplies or transportation delay; (e) war, civil disturbance, riots and armed conflict; (f) governmental action, order, confiscation or other acts directly or indirectly affecting Seller's performance hereunder; or (g) Seller's inability to obtain the Merchandise.
5. Warranties. UNLESS OTHERWISE EXPRESSLY STATED ON THE INVOICE FACE, IT IS UNDERSTOOD THAT THE PURCHASE OF ALL MERCHANDISE IS "AS IS" AND "WITH ALL FAULTS". SELLER DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THE SALE OF THE MERCHANDISE TO PURCHASER, BOTH EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. SELLER HEREBY ASSIGNS THOSE WARRANTIES OF, IF ANY EXPRESSLY PROVIDED BY THE MANUFACTURERS OF NEW MERCHANDISE OR PARTS USED TO REFURBISH THE MERCHANDISE. SELLER MAKES NO REPRESENTATION CONCERNING THE EXISTENCE OR SCOPE OF ANY SUCH MANUFACTURER WARRANTIES AND IN NO EVENT SHALL PURCHASER OR ANY OTHER PERSON HAVE REMEDY AGAINST SELLER FOR BREACH OF A MANUFACTURER'S WARRANTY.
6. Remedies. In the event Seller provides any express warranty on the Invoice Face, Purchaser's exclusive remedy, in lieu of all other remedies, statutory or otherwise, shall be limited to the refund of any purchase price for the Merchandise paid to Seller hereunder. Purchaser's failure to promptly notify Seller in writing of any claim shall constitute a waiver and release by Purchaser of any and all claims arising against Seller in connection with the Merchandise. No action by Purchaser for breach of any of the terms and provisions of the Agreement shall be commenced subsequent to one (1) year after the cause of action has accrued. SELLER SHALL IN NO EVENT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER.
7. Responsibility of Purchaser. Unless otherwise stated on the Invoice Face, Purchaser assumes full responsibility, including associated costs, for the installation and start-up of the Merchandise. It is Purchaser's responsibility to provide sufficient safety devices and equipment, or such other means as may be necessary to safeguard operators of the Merchandise from harm, to ensure that proper and safe operating procedures are followed by the operators thereof, and that the Merchandise will comply with the Williams-Steiger Occupational Safety and Health Act and any like state or local law. Purchaser agrees to keep, save, protect, defend, indemnify and hold Seller harmless from and against all suits, claims, costs and expenses for personal injury, death or property damage arising from the purchase, ownership or use by Purchaser or Purchaser's agents, employees or independent contractors of the Merchandise, it being expressly understood that any claim arising from alleged manufacturing or design in new parts or used Merchandise shall be asserted only against its manufacturer.
8. Cancellation, Returns of Merchandise. Purchaser may not cancel the Agreement in whole or in part prior to the date of delivery of Merchandise to Purchaser except upon written notice to Seller and upon payment, as liquidated damages, and not as a penalty, of an amount equal to twenty percent (20%) of the total purchase price of the canceled Agreement or the amount of liquidated damages which Seller must pay for labor, materials, overhead and supplier(s) costs, whichever is greater. No returns of the Merchandise by Purchaser to Seller will be accepted without the prior written permission of Seller. Purchaser agrees to pay Seller a sufficient restocking charge on returned Merchandise at a rate determined by Seller.
9. Default. If Purchaser shall default in the performance of any of its obligations hereunder, then in addition to any and all other rights or remedies which Seller may have against Purchaser, Purchaser shall be liable to Seller for all court costs and attorneys' fees incurred in enforcing the terms and conditions of the Agreement.
10. Notice. All notices shall be in writing and shall be deemed to have been duly given if either delivered personally or sent by registered or certified mail, return receipt requested, with postage prepaid addressed to the party at its respective address as shown on the Invoice Face.
11. Entire Agreement. The terms and conditions contained herein, together with the Invoice Face, constitute the final, complete and exclusive statement of the terms of the agreement between the parties hereto with respect to the subject matter hereof (the "Agreement") and any additional or different terms proposed by Purchaser, whether prior to or subsequent to the Agreement, are rejected unless expressly agreed to in writing by Seller. No agent, employee or representative of Seller has any authority to bind Seller to any affirmation, representation or warranty is included in the Agreement, it is not part of the basis of this bargain and shall not be binding upon or enforceable against Seller. No course or prior dealings between the parties and no custom or usage of trade in the industry shall be used to interpret, construe or supplement the Agreement. The Agreement of which these terms and conditions are a part can be modified or rescinded only by writing signed by either parties or their duly authorized agents.
12. Construction. The terms and conditions of the Agreement shall be governed and constructed in accordance with the laws of the State of Ohio, without giving effect to its choice of law principles.
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